Paul Manafort is right - Mueller has overstepped his authority in the Trump/Russia probe | Marc A. Scaringi

Updated January 10, 2018 at 10:16 PM;Posted January 10, 2018 at 8:30 AM

FILE - In this June 21, 2017, file photo, special counsel Robert Mueller departs Capitol Hill following a closed door meeting in Washington. Mueller's team of investigators has recently questioned a former British spy who compiled a dossier of allegations about President Donald Trump's ties to Russia. (AP Photo/Andrew Harnik)(Andrew Harnik)

Paul Manafort, the first of four men to be charged so far in the investigation by Special Counsel Robert S. Mueller, has filed a civil suit against Mueller, and his boss, Deputy Attorney General Rod Rosenstein.

Marc A. Scaringi (PennLive file)

Manafort, the one-time Trump campaign chairman, has challenged Mueller's authority to bring the charges against him that he did.

Although it's an unusual tactic to file a civil suit in a pending criminal case, and the suit may very well be dismissed because the matter is more properly brought in criminal court; it has caused a closer inspection of, and has raised serious concerns about, the order appointing the special counsel, and the handling of this investigation.

The regulations governing the special counsel permit an appointment only where the Attorney General, "determines that criminal investigation of a person or matter is warranted."

Once that determination is made the AG appoints the special counsel and establishes his jurisdiction via the provision of "a specific factual statement of the matter to be investigated."

In this case, the "factual" statement, provided by Rosenstein in his May 2017 order appointing Mueller, is to, "investigate any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump."

The problem is that's not a factual statement. It's a conclusory statement - an assertion for which no evidence [i.e. facts] are offered.

In other words, it's a factless factual statement. Rosenstein, during questioning before the House Judiciary Committee, admitted as much. He said, "the specific matters [i.e., the factual statement] are not identified in the order."

I'd suggest that's because there were no facts of criminal coordination to include. If one were to ask Rosenstein to write the required factual statement today - eight months after he was supposed to - he still couldn't.

Assuming for the sake of argument what Rosenstein wrote qualifies as a "factual statement," Mueller has brought charges against Manafort that fall outside the scope of his original jurisdiction.

That's because none of the crimes Mueller has charged have anything to do with the alleged Russia/Trump criminal coordination, which is the only matter for which Mueller has original jurisdiction. So where does Mueller get the authority to bring the charges he did?

It's not in the part of the appointment order where Rosenstein tries to expand Mueller's original jurisdiction beyond what is permitted by including within it, "any matters that arose or may arise from the investigation."

The only "additional" authority permitted by the governing regulation to fall within the grant of original jurisdiction pertains to process crimes, like obstruction of justice and perjury, designed to interfere with the investigation.

But, Manafort has not been charged with attempting to interfere with Mueller's investigation.

So where did Mueller get the authority to charge Manafort?

Rosenstein's appointment order gives him the authority to investigate, after consultation and approval by the Attorney General, "new matters that come to light in the course of" his investigation. This does conform to the governing regulation.

These "new matters" include the charges Mueller has filed against Manafort such as money laundering, failing to file information forms for foreign bank accounts and failure to register as a foreign lobbyist.

However, the "new matters" that comprise Mueller's charges against Manafort did not "come to light in the course of" Mueller's investigation of the alleged criminal coordination between Russia and the Trump campaign.

These "new matters" involve allegations of non-related offenses from as early as 2006 and were already being investigated by the Justice Department since 2014 - a year before Trump announced his candidacy for president; two years before Manafort joined his campaign, and three years before Mueller was appointed special counsel.

Even assuming Mueller's appointment is valid in the absence of a crime, and a factual basis for it, the charges filed against Manafort fall outside Mueller's original jurisdiction.

Rosenstein should have referred these matters back to the United States Attorney's Office that had been investigating Manafort years before.

This would have put the charges with the proper prosecutor and in the proper context, i.e. having nothing to do with the alleged criminal cooperation between Russia and the Trump campaign.

But, by Rosenstein keeping these "additional matters" with Mueller, and by Mueller bringing these charges against Manafort, it gave Mueller a notch on his belt.

That's something he sorely needs to justify his investigation; enabled the media to report the news as a great victory for Mueller; a big blow to Trump and evidence that Mueller is hot on the trail of "collusion," which he's not because there is none.

It appears Rosenstein and Mueller have improperly turned a counterintelligence investigation into a criminal investigation in the absence of a crime.

And in the absence of facts evidencing the crime for which the special counsel was appointed.

And, they have gone far beyond their original jurisdiction to charge crimes that have nothing to do with the purpose of the appointment.

That's all in violation of the regulation governing the special counsel, the principles of our criminal justice system, and the rule of law.

Trump has called the Mueller investigation a "hoax" and a "witch hunt." It appears Trump is right once again. Maybe Trump is a genius? And, a stable genius at that.

Marc. A. Scaringi, of Camp Hill, is an attorney and PennLive Opinion contributor. His work appears biweekly.